Milpitas: Company officials charged with involuntary manslaughter in worker's cave-in death

By Katie Nelson knelson@mercurynews.com

Posted:
08/12/2014 06:17:45 AM PDT

Updated:
08/12/2014 06:18:48 AM PDT

Courtesy ABC7 News -- Investigators from an unidentified agency investigate the scene at a Milpitas luxury home site where a construction worker, Raul Zapata, of Hayward, died Saturday after being buried alive when a wall of dirt collapsed over him. The Milpitas building inspector said a stop-work order had been issued there earlier in the week because of concerns about the lack of adequete shoring to prevent a collapse and that Zapata and other construction workers should not have been working the site on Saturday when the accident took Zapata's life.

SAN JOSE -- A Fremont-based construction company, its owner and a project manager were indicted Monday on involuntary manslaughter charges in the cave-in death of a construction worker at a Milpitas building site in 2012, according to the Santa Clara County District Attorney's Office.

Raul Zapata Mercado, 38, was killed on Jan. 28, 2012, after he was buried alive when a 12-foot wall of dirt collapsed on top of him while he was working on a hillside home on Calaveras Ridge Drive in Milpitas. Zapata was working for Fremont-based general contractor U.S. Sino Investment Inc., at the time.

Three days earlier, a Milpitas building inspector had issued a "stop work" notice to the project manager at the site when he became concerned that cave-ins, just like the one that killed Zapata, could happen after several days of torrential rain; the project had no permit for excavation deeper than 5 feet.

Still, no one stopped working at the site.

"This case is about what happens when construction companies cut corners on safety," District Attorney Jeff Rosen said in a news release. "Workplace safety is not an option. What happened to Raul Zapata Mercado was not an accident, it was a crime."

According to Keyvan Irannejad, Milpitas' chief building official, a company can only resume work at a construction site after the city is satisfied that all safety concerns have been addressed and remedied by the company.

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"They completely ignored the stop work order," Irannejad said. "We actually had an inspector stop by there a second time randomly and he still saw people working, so he issued a second order. ... The city has the final say when people can go back to work."

Zapata's relatives were not immediately available for comment.

Dan Luo, 36, the project manager who was in charge at the site when Zapata was killed, was arraigned on Monday. A $1 million arrest warrant has also been issued for the company's owner and CEO, former Fremont resident Richard Liu, 52, who officials believe may be in China.

While not common, these kinds of criminal charges in construction accidents are not unprecedented.

"The district attorney is going ahead with the criminal charge because the DA believes the defendants knew about it, they should have known there could be a problem," said Michael Silvers, principal partner with a San Mateo-based law firm that specializes in personal injury and wrongful death cases. "The construction company should have known it was a life-threatening situation. The company probably decided to just go ahead with the work despite the danger."

In June 2012, Cal-OSHA fined U.S. Sino Investment $168,175 for "numerous serious and willful violations of Cal-OSHA's safety standards," according to the department.

"The employer failed to inspect the excavation daily, as required, or inform new workers of the hazards and safety precautions necessary for this work," the department said in a June 2012 news release. "The instability of the soil and risk of further cave-in prevented rescuers from recovering Mr. Zapata's body for several days."

The Contractors State License Board also suspended the general building contractor license for both the construction company and for Liu after it discovered Liu failed to provide workers' compensation insurance to employees, as required by law.

The maximum sentence for felony involuntary manslaughter is three years in prison. The construction company faces a fine of up to $1.5 million for labor code violations.

Mercado, of Hayward, is survived by his wife and three children, of Zacatecas, Mexico.

Staff writer George Avalos contributed to this report. Contact Katie Nelson at 408-920-5006 and follow her at Twitter.com/katienelson210.